Minnesota employers who conduct pre-employment drug testing or drug testing of current employees are familiar with the protections for employees who are enrolled in the Department of Health Patient Registry Program for medical marijuana.  An employer cannot discriminate against a person enrolled on the Patient Registry in hiring, termination or any term or condition of employment based upon a positive drug test for cannabis components or metabolites unless the employee used, possessed or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.  This provision has been a challenge to apply because marijuana stays in the system for so long, and it can be difficult to ascertain if a person who fails a marijuana drug test is actually impaired at the time of the test.

Now, Minnesota employers have another challenge in their effort to maintain a drug-free workplace with the Minnesota legislature’s legalization of certain forms of marijuana for recreational use.  Effective July 1, 2022, Minnesotans can lawfully purchase and consume edible and drinkable products containing hemp derived THC.  THC is an element of cannabis which is considered a hallucinogenic substance.

The Minnesota statute excludes from its list of controlled substances hemp products that contain no more than 0.3 percent of any form of THC.  The Minnesota law goes further and allows Minnesotans to purchase edible and drinkable products that contain no more than 5 milligrams of THC per serving and no more than 50 milligrams per package. This Minnesota law does not affect drug testing conducted pursuant to federal law, such as for truck drivers covered by the U.S. Department of Transportation drug and alcohol testing regulations.

The THC statute does not discuss protections for employees or applicants who test positive for marijuana because they have consumed a THC product.  An applicant or an employee can now explain a positive result for marijuana as arising from the lawful use of THC products, which creates a conundrum for employers.  Can they require that the employee undergo the procedures described in the Minnesota Drug and Alcohol Testing in the Workplace Act because of testing positive for marijuana?  Or should they disregard the positive test result?  An employer must consider whether the individual who has tested positive for marijuana because of consuming THC holds a position where being under the influence of marijuana could be a safety concern.  Marijuana can remain in a user’s body for up to four weeks after the marijuana is consumed, so the individual may not actually be working under the influence of a hallucinogenic drug because it could have been consumed several weeks before the drug test.

In addition, Minnesota’s Lawful Consumable Products Act poses another problem.  This statute protects the consumption of a lawful consumable product during an employee’s non-work time.  The statute defines a “lawful consumable product” as a product whose use or enjoyment is lawful, and specifically includes food, alcoholic or non-alcoholic beverages, and tobacco.  It is unclear if THC edibles fall under this statute, and if they do, it would protect an employee who receives a positive marijuana test because of the consumption of THC.

In 2015, the Colorado Supreme Court held that employers could enforce their zero tolerance policies against employees who are allowed to use medical cannabis under state law, even if the employee uses the marijuana during nonwork hours.  The Colorado Supreme Court stated that to be protected under the lawful consumable product statute in that state, the use must be “lawful” under both state and federal law.  Therefore, since marijuana is illegal under federal law, a Colorado employee testing positive for medical marijuana can be disciplined, including termination, for failing a drug test.  The Minnesota THC statute makes no reference to the lawful consumable products statute so it is unknown how that statute would be interpreted by a court with respect to THC edibles.

What Should Minnesota Employers Do in Light of These Ambiguities?

Many employers are considering waiving a positive marijuana test, or not testing for marijuana at all, because so many applicants and employees are failing drug tests.  These employers are trying to assess the risk in allowing an employee who tests positive for marijuana to be hired or to retain their employment.  Employers can still prohibit employees from coming to work impaired by marijuana, and for using marijuana in the workplace, but impairment can be difficult to identify.  Whether employers should take action against an employee who tests positive for marijuana because the employee has consumed a THC edible, depends on the duties and responsibilities of the employee.  Additionally, supervisors and managers will have to be trained to recognize whether an employee is coming to work under the influence of marijuana.  They must be able to recognize impairment since a positive marijuana test does not necessarily mean that an individual is impaired at the time the test was taken.

Employers will also have to evaluate the risk and safety of allowing an applicant or employee to continue to work when they have failed a marijuana test.  Some employers may decide to test only those employees in safety sensitive positions. Hopefully, the testing laboratories will refine their testing procedures so that it is easier to determine whether a positive drug test derives from lawful THC.  For now, employers can take adverse action against an employee who fails a drug test because of consuming lawful THC (subject to the requirements of the Minnesota Drug and Alcohol Testing in the Workplace Act, such as the requirement that before disciplining an employee, the employee must be offered an opportunity to be assessed by a chemical dependency counselor and comply with the counselor’s recommendations).  It may take the courts some time to determine whether THC edibles are a lawful consumable product protected by the Lawful Consumable Product Act.

Employers should consult with their legal counsel to discuss whether to cease testing for marijuana.  At present, there is uncertainty as to the impact of the new THC statute on an employer’s right to maintain a zero-tolerance policy for drugs, including marijuana.  I recommend employers keep a close eye on this issue as new information develops.

Phyllis Karasov is an attorney who advises businesses on labor and employment matters. Her clients come from a variety of sectors, including construction, manufacturing, higher education, K-12 private education, nonprofit and healthcare.

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